Wage and Hour Division (WHD)

Interim Final Rule: Temporary Non-agricultural Employment of H-2B Aliens in the United States

On April 29, 2015, the U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) jointly issued an Interim Final Rule (“2015 IFR”) that immediately implements a strengthened H-2B program. The Departments also jointly issued a Final Wage Rule that establishes the prevailing wage methodology for that program.

The 2015 IFR strengthens U.S. worker protections, ensuring that U.S. workers have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers. It also ensures that U.S. workers who are doing essentially the same jobs as H-2B workers have substantially the same rights and benefits as those workers. The new regulations strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers alike, and protect workers from retaliation when they seek to enforce their rights.

Major features of the 2015 IFR include the creation a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs. The 2015 IFR also enhances recruitment of U.S. workers from across the country, increases the amount of time for which U.S. workers must be recruited and hired, and requires the rehiring of recent former employees when available.

Under the Final Wage Rule employers generally must pay the mean wage for the occupation in the geographic area where the work is performed based on the Occupational Employment Statistics survey. Employer-provided surveys may be used in specified circumstances.